[4] 従来の個別財産に対する担保制度は、個別財産に着目する融資に適したものである一方で、事業全体に対する担保制度は、事業全体に着目する融資に適したものとされる。例えば、Armour, J (2008),‘The Law and Economics
Debate About Secured Lending: Lessons for European Lawmaking?’ European Company and Financial Law Review, 5, 1517 参照。また、日本と米国のデータを比較し、米国ではキャッシュフローに基づく融資が大きな割合を占めている一方で、日本ではキャッシュフローではなく資産価値に基づく融資が中心であることを指摘した上で、その原因の一つとして、日本において事業全体に対する担保制度等が存在しないことを挙げるものもある。Lian, C.,
& Ma, Y. (2021),‘Anatomy of Corporate Borrowing Constraints’ The Quarterly Journal of Economics, 136(1), 230-233 参照。
R. E. (1986), ‘A Relational Theory of Secured Financing’ Columbia Law Review, 86(5), 943–952.参照。こうした取組は、理論的には無担保でも可能だが、現実にはリスクやコストが大き過ぎるため難しい。この点、事業全体に対する担保権の設定により、詐害行為の予防や優先弁済権等を通じてリスクやコストを抑えることができるため、金融機関にとって現実にも融資が可能となり、事業者にとっても資金調達ができるようになる。こうした点について、例えば、Kanda, H. & Levmore, S. (1994),‘Explaining Creditor Priorities’ Virginia Law Review, 80, 2111-2114 参照。
[29] 米国では債権者間合意等を結びつつ、担保付や無担保等を組み合わせ複層的に資金調達する場合がある。例えば、Rauh, J. D., & Sufi, A. (2010),‘Capital Structure and Debt Structure’The Review of Financial Studies, 23(12), 4244 参照。
A1 The Act on Electronic Signatures and Certification Business (Act No. 102 of 2000, after this referred to as the “Electronic Signature Act”) Article 2, Paragraph 1 defines “electronic signature” as “an electromagnetic record (a record made by an electronic method, a magnetic process, or any other method not recognizable to human perception, which is used for information processing by a computer.
The same shall apply hereinafter). (i) A measure taken with respect to information that can be recorded in a record (meaning a record made in a form that is not recognizable by human perception, such as a magnetic form or other forms not recognizable by human perception, which is used for information processing by computers; the same shall apply hereinafter) that meets all of the following requirements
(i) The measure is taken to indicate that said information was prepared by the person who took said measure.
(ii) The information is such that it can be verified whether or not it has been altered.
The above provisions are stipulated as follows.
But, attaching an electronic certificate of the creator to an electromagnetic record (data) such as the minutes of a shareholders’ meeting is called an electronic signature.
Remote signature means that the user’s signature key is installed and stored on the server of the service provider, and the user logs in to the service provider’s server remotely and digitally sign the document with the user’s own signature key.
Cloud-based digital signatures are also known as witnessed digital signatures. A business entity signs an electronic signature with its own signature key under the instruction of a user.
On July 17, 2020, the Ministry of Justice, the Ministry of Internal Affairs and Communications, and the Ministry of Economy, Trade and Industry expressed the following opinions regarding the position of cloud-type electronic signatures under the Electronic Signature Law.
Q2: How is an electronic contract service in which a service provider performs electronic signatures with the service provider’s own signature key based on the user’s instructions positioned under the Electronic Signature Law?
Recently, there are services that encrypt electronic documents (digital information) created by a user based on the user’s instructions, using the service provider’s own signature key. The question is whether the service provider is regarded as a “person who has taken such measures” (Article 2, Paragraph 1, Item 1 of the Electronic Signature Law), or whether the user can be regarded as having taken such measures depending on the content of the service.
For example, even if A physically performs the measure, if the measure is deemed to have been performed solely based on B’s intention and without A’s intervention, then “the person who performed the measure” is considered to be “the person who performed the measure”. For example, even if A physically took the measure, if it is deemed that the measure was taken based solely on B’s intention and without A’s intervention, then it is considered that “the person who took the measure” can be evaluated as B.
Therefore, even in the case of a service that attempts to ensure the authenticity of the formation and subsequent non-alteration of electronic documents created by the user by encrypting such documents with the service provider’s own signature key, from a technical and functional viewpoint, there is no room for the service provider’s intention to intervene, and the service provider’s intention is not required to ensure the authenticity of such documents, and the service provider’s intention to ensure the authenticity of the documents is not intervened by the user. Even in the case of a service that attempts to ensure the authenticity and subsequent unmodifiability of the document by performing such measures, if it is recognized that the service is mechanically encrypted based solely on the intention of the user, with no room for the intention of the service provider to intervene, from a technical and functional perspective, the “person who performed such measures” is considered to be the user, not the service provider.
In addition, in the above-mentioned service, for example, the user who sent the electronic document to the service provider, the date and time of the electronic document transmission, and other information can be confirmed as ancillary information, etc. By redefining the entirety of the electronic document including the relevant information attached to the electronic document as a single measure, it is possible to evaluate that the relevant measure taken with respect to the electronic document was taken by the user. If it is clear that the measure taken with respect to the electronic document is based on the intention of the user, for example, by redefining the entire electronic document including the information attached to the electronic document as a single measure, the requirement that “the electronic document is intended to indicate that it was created by the person who took the measure (= the user)” (Article 2.1.1 of the Electronic Signature Act) shall be considered to be satisfied. ) is considered to be satisfied.
Q3 Can electromagnetic records digitally signed by the electronic certificates mentioned in A2 be used as attachment information for commercial registration? In this case, can these electronic signatures and electronic certificates be considered equivalent to an actual seal?
A3 In general, remote signatures and cloud-based electronic signatures are treated as the equivalent of a certified seal, not as the equivalent of an actual seal, in the attached document information for commercial registration.
According to the administrative communication of the Commercial Division of the Civil Affairs Bureau of the Ministry of Justice dated June 12, 2020, remote signatures and cloud-based electronic signatures cannot be used for electromagnetic records as attached document information when a certificate prepared by the mayor of the municipality must be attached for the seal affixed to the attached document in accordance with laws and regulations. The following is a list of the conditions for the use of remote signatures and cloud-based electronic signatures.
Q4 Is it possible to confirm the validity of electronic signatures and electronic certificates? Can I also check whose digital signature/digital certificate it is?
Both remote and cloud-based digital signatures are verified using Adobe’s Acrobat Reader. Open the attached document information that has been electronically signed. If you see on the left side of the screen “Signed, all signatures are valid.” on the left side, you can confirm that the electronic signature is valid.
To check the validity of the digital certificate, click on the “Signature Panel” in the upper right corner of the screen and the signer’s information will be displayed on the left side of the screen. Further detailed information will be displayed, including the validity of the digital certificate. In the case of remote signature, the person whose name is written in the attached document information is the signer.
In the case of a cloud-based digital signature, the name and other information on the digital certificate will be the name of the business. Then, open the signature properties screen, check the “Reason” and confirm whether or not the person named in the attached document information is involved.
Also, by clicking “View Signer’s Certificate” on the Signature Properties screen, the certificate viewer will appear, and the issuer will be displayed, allowing you to check if the certificate is the same as the digital certificate specified by the Minister of Justice.
Specific confirmation methods for digital certificates that have been digitally signed using the cloud-based digital signature method are described on pages 10 to 18.
In addition to digital certificates, there is another type of digital certificate called a time stamp. While a digital certificate proves “who” and “what,” a time stamp proves “when” and “what. With this timestamp, it is possible to confirm when the electromagnetic record existed.
Q5 Is it possible to check if the attached document information has been changed or altered after the electronic signature?
A5 Yes.
(1) is the electronic signature information screen for attached document information that has been electronically signed without any changes or alterations. On the other hand, if the attached document information is changed or tampered with after the electronic signature has been granted, the signature panel information screen will appear as shown in (2), and the fact that the information has been changed or tampered with can be seen at a glance.
When a person submitting a seal and another person electronically sign the same electromagnetic record, such as minutes of a shareholders’ meeting or minutes of a board of directors meeting, it is preferable to use a cloud-based electronic signature first, followed by a commercial registration electronic signature, public personal certification service electronic signature or specified certification service electronic signature (hereinafter referred to as “commercial registration electronic signature, etc.”). It is preferable to use a cloud-based electronic signature first, followed by a commercial registration electronic signature, a public personal certification service electronic signature, or a specified certification service electronic signature (hereinafter referred to as “commercial registration electronic signature, etc.”). This is because if you try to perform cloud-based electronic signature after performing commercial registration electronic signature, etc., the initial electronic signature may be reset at the stage of uploading the electromagnetic record to the system. When the signature panel is opened, the fact that an electronic signature has been added will be indicated as other changes, but this does not constitute tampering with the electromagnetic record itself.
Q6 Is it possible to use cloud-based e-signed attached document information even if a written application is submitted instead of an online application?
A6 Yes, you can.
The revised Commercial Registration Rules came into effect on February 15, 2021, and remote signatures and cloud-based electronic signatures can be used for electromagnetic records attached to applications in the case of a written application.
Q 7 In an online application for commercial registration, is it possible to submit electronically signed attached document information on a CD-R, etc.? Q7 In an online application for commercial registration, is it possible to submit electronically signed attached document information on a CD-R, etc.?
Ａ７ Yes, it is possible.
The proviso to Article 102, Paragraph 2 of the Commercial Registration Rules states that the applicant is not precluded from submitting or sending the “document” to the registry office in lieu of sending the attached document information. The proviso to Article 102(2) of the Commercial Registration Rules does not preclude the submission or sending of such “document” to the registry office in lieu of transmitting the attached document information.
This “document” includes the application form under Article 19-2 of the Commercial Registration Law and the “document” attached to the application form under Article 19-2. This “document” includes the electromagnetic record attached to the application form under Article 19-2 of the Commercial Registration Act. Therefore, it is possible to submit the attached document information on a CD-R, etc. even in the case of an online application. However, it is possible to submit the attached document information on a CD-R, etc. even in the case of an online application.
However, in consideration of the purpose of online applications, there must be a special reason such as the information is too large to be transmitted online. However, in light of the purpose of online application, it is preferable for judicial scriveners to submit the information online unless there is a special reason such as the information is too large to be submitted online. However, in light of the purpose of online application, it is preferable for judicial scriveners to submit the information online unless there are exceptional reasons such as the information being too large to be transmitted online.
Q8 My client sent me an electromagnetic record in lieu of a letter of acceptance from the office with a cloud-based electronic signature.
A8 If it is not an electromagnetic record in place of the letter of acceptance of office that falls under Article 61, Paragraphs 4 and 5 of the Commercial Registration Regulations, it can be used as attached document information for commercial registration.
Since cloud-based electronic signatures used as attached document information for commercial registration are generally treated as a certified seal (see A3), they cannot be used as electromagnetic records in place of the letter of acceptance of office for directors at the time of incorporation and directors (representative directors in the case of companies with a board of directors) except for those who have been reappointed.
In addition, when a public personal certification service electronic signature or a specific certification service electronic signature is used for the electromagnetic record in lieu of the letter of acceptance of office as the attached document information for commercial registration, the identification information of the director or officer stipulated in Article 61, Paragraph 7 of the Commercial Registration Regulations need not be attached (Article 103 of the Commercial Registration Regulations). For validity verification of electronic certificates for public personal certification service electronic signatures, please use the JCPA Public Personal Certification Validity Verification System.
Q9 To what extent is a qualified representative required to confirm the electronic signatures on the attached document information for commercial registration?
A9 It is considered sufficient to check whether there is anything suspicious about the identity of the person whose signature appears in the signature field of the attached document information and the signer of the electronic signature, whether the electromagnetic record has been tampered with, and whether the electronic certificate is valid.
Q10 If the creator of an electromagnetic record in place of minutes of a general meeting of shareholders or minutes of a board of directors is a representative who has submitted his/her seal to the registry office, can the electromagnetic record created with a cloud-type electronic signature as the representative’s electronic signature be used as attached document information for a commercial registration?
A1 0 Yes, in some cases.
Article 36, Item 5 and Article 102, Paragraph 6 of the Commercial Registration Rules, which stipulate that the electronic signature on the attached document information shall be limited to the electronic signature for commercial registration, have been deleted when the creator of the attached document information for commercial registration is the person who has submitted the seal to the registry office.
Therefore, even if the person who submitted the seal to the registry office has a cloud-based electronic signature on the electromagnetic record as the creator, the electromagnetic record can still be used as attached document information for the commercial registration. For example, this applies to electromagnetic records in lieu of the minutes of a shareholders’ meeting concerning an amendment to the articles of incorporation when relocating the head office outside the jurisdiction, or the minutes of a board of directors’ meeting (a written decision by the board of directors) that determines the location of the head office.
However, in cases where a certificate prepared by the mayor of the municipality is required for the seal affixed to the attached document in accordance with laws and regulations, or when a corporation is required to affix a seal registered with the Legal Affairs Bureau, an electronic signature equivalent to an actual seal must be used for the electromagnetic record as the attached document information.
Therefore, cloud-based electronic signatures may not be used for electromagnetic records in place of the minutes of the general meeting of shareholders and the minutes of the board of directors’ meeting (the written decisions of directors) concerning the selection of representative directors. For details, please refer to Q12.
Q11 According to the administrative communication of the Commercial Division, Civil Affairs Bureau, Ministry of Justice, dated June 12, 2020, cloud-based electronic signatures can be used “except for cases where the creator of the attached document information is the person who submitted the seal, and except for cases where a certificate prepared by the mayor of the municipality must be attached for the seal affixed to the document to be attached to the application for registration in accordance with the provisions of laws and regulations. What kind of documents does this apply to?
A11, we believe it can be summarized as follows.
【クラウド型電子署名の利用が認められる添付書面情報】
■株主総会議事録
■取締役会議事録
■取締役決定書
クラウド型電子署名の利用可能。ただし、代表取締役の選定にかかる場合にはＱ1 2参照。
Attached is document information for which the use of cloud-based electronic signatures is permitted.
Minutes of the General Meeting of Shareholders.
Minutes of Board of Directors meetings.
Minutes of Board of Directors Meetings.
Cloud-based electronic signatures can be used. However, However, in the case of the selection of a representative director, please refer to Q1 2. See Q12 for the selection of representative directors.
■定款（設立時に公証人が認証したものを添付する場合を除く）
■発起人決定書
■就任承諾書（法令の規定により市町村長の作成した証明書を添付しなければならない場合を除く。）。
■辞任届（作成者が印鑑提出者である場合を除く。）。
■本人確認証明書。
■株主リスト。
■資本金計上証明書。
■払込みがあったことを証する書面。
■株主総会招集期間短縮の同意書。
■失権予告付催告の期間を短縮する場合の総株主の同意書。
■現物出資がされた場合 の弁護士等の証明書（商業登記法第56条第３号ハの書面）。
■取得請求権付株式の取得の請求があったことを証する書面。
■新株予約権の行使があったことを証する書面。
■組織再編、資本金の額の減少等の場合において、債権者に対して各別に催告した旨を証明した書面。
■外国語で作成された添付書面情報の翻訳文書（作成者が印鑑提出者である場合を除く。）。
■Articles of Incorporation
(except in the case of attaching a document certified by a notary public at the time of incorporation).
■Assumption of office (except in cases where a certificate prepared by the mayor of the municipality must be attached pursuant to the provisions of the law).
■ Letter of resignation (except when the preparer is the person submitting the seal).
■Certificate of identification.
■A list of shareholders.
■Certificate of capitalization.
■A document certifying that payment has been made.
■An agreement to shorten the period for convening a general meeting of shareholders.
■A letter of consent from all shareholders in the case of shortening the period of notice of forfeiture of the right to demand a meeting.
■A certificate from an attorney or other legal representative in the case of contribution-in-kind (the document stipulated in Article 56, Item 3(c) of the Commercial Registration Law).
■A document certifying that a request for the acquisition of shares with a put option has been made.
■A document certifying that the subscription rights to shares have been exercised.
■In the case of reorganization, reduction of capital stock, etc., a document certifying that separate notice was given to creditors.
■A translation of the attached document prepared in a foreign language (except in cases where the person who prepared the translation is the person submitting the seal). (ii) A document certifying that the creditor has received a notice of demand separately from the creditor.
Cloud-based electronic signatures are available.
■募集株式の引受けの申込みを証する書面。
■募集新株予約権の引受けの申込みを証する書面。
■株式申込証の添付省略の代表者証明書
■Certificate of representative omitting the attachment of the share application certificate.
→■クラウド型電子署名の利用可能
■A document evidencing an offer to subscribe for shares to be offered.
■A document evidencing the application for subscription of offered stock acquisition rights.
■Cloud-based electronic signatures are available.
【クラウド型電子署名の利用が認められない添付書面情報】
■就任承諾書（法令の規定により市町村長の作成した証明書を添付しなければならない場合。）
■辞任届（作成者が印鑑提出者（印鑑を届け出ていない会社では「代表取締役」）である場合。）
■代理人によって登記を申請する場合の委任状
■Attached is document information for which the use of cloud-based electronic signatures is not permitted.
■Assumption of office.
■ Acceptance of office (when a certificate prepared by the mayor of the municipality must be attached in accordance with the provisions of the law.)
■ Notification of Resignation (if the person making the notification is the person submitting the seal (or the “representative director” in the case of a company that has not registered its seal).
■A letter of attorney in the case of an application for registration by proxy
→ If a certificate created by the mayor of the municipality is required for the seal stamped on the attached document under the provisions of laws and regulations, or if the corporation must affix the seal that has been notified to the Legal Affairs Bureau, the digital signature of the creator Type electronic signatures cannot be used (commercial registration electronic signatures, etc. are required).
Q12 Who and which electronic signature is required for the electromagnetic record in lieu of the minutes of the board of directors meeting regarding the selection of representative directors to be attached to the document information that can be used in the commercial registration?
A12 The following is required.
(1) When a person who has submitted his/her seal to the registry office is present.
If a person who has submitted his/her seal to the registry office is present at the board of Directors meeting, he/she is required to electronically sign the electromagnetic record in place of the minutes of the Board of directors meeting (see A9).
In this case, it is sufficient for the other attending officers to electronically sign the minutes using a cloud-based electronic signature.
(2) When a person who has submitted his/her seal to the registry office is not present.
If a person who has submitted his/her seal to the registry office is not present at the board of Directors meeting, the attending officer must electronically sign the electromagnetic record in place of the minutes of the Board of directors meeting using a public personal certification service electronic signature or a specific certification service electronic signature.
In cases where representative directors are elected at a general shareholder meeting or by mutual election of directors in accordance with the articles of incorporation, an electronic signature on the electromagnetic record in place of the minutes of the general shareholders meeting or the mutual election is also available as attached document information for the commercial registration, in accordance with the above classification.
Q13 Q12 If the board of Directors meeting is made by a written resolution, who should put an electronic signature on the electronic record that replaces the minutes of the board of directors meeting will be the attached document information that can be used in the online application for commercial registration?
A13 It will be as follows.
(1) When a person who has submitted a seal to the registry office is the person who prepares the minutes.
If a person who submits a seal to the registry office becomes the person who prepares the minutes, the electromagnetic record can be used in the commercial registration by applying a commercial registration electronic signature, etc. to the electromagnetic record instead of the minutes of the board meeting. The attached document information is possible (see A10).
In this case, other officers are not required to electronically sign.
(2) When the person submitting the seal to the registry office cannot participate in the preparation of the minutes.
If the person who has submitted the seal to the registry office cannot participate in the preparation of the minutes, all directors who have expressed their intention to consent must use the public personal authentication service electronic signature or the specific authentication service electronic signature to record the minutes of the board of directors meeting. The electronic signature on the electronic record in lieu is the attachment information available in the commercial register.
In addition, an electromagnetic record in place of the minutes electronically signed by the minute’s creator with a public personal authentication service electronic signature or a specific authentication business electronic signature, and other directors with a public personal authentication service electronic signature or a specific authentication business electronic signature It is considered that the attached document information may be a combination of electromagnetic records in lieu of the written consent.
Q14If the directors and auditors who attended the board of directors’ meeting separately signed their electronic signatures on the electromagnetic records that replace the minutes of the same content, and if there are multiple electromagnetic records that replace the minutes of the board of directors, these board meeting proceedings Is it possible to use all of the electromagnetic records that replace the minutes of the board of directors as the attachment information in the online application for commercial registration?
A14 No.
In the conventional registration practice, several copies of the minutes of the board of Directors meeting, which are attached documents to the registration application, are prepared, and some directors sign and seal each minute. It is said that it is not legal to prepare the minutes by the method in which the names and seals of the directors are aligned (May 1, 1961, Civil Affairs Fourth Section No. 81, Answer by the Deputy Manager of the Fourth Section of the Civil Affairs Bureau).
This is considered to be the same even if the minutes of the board of directors’ meetings are prepared as electromagnetic records. Therefore, it is not possible for some officers to electronically sign electronic records in lieu of minutes of multiple board meetings, and for all electronic records to be used as attachment information in the online application for commercial registration.
